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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Additionally, it is well settled that:

California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. Munro v. Regents of the University of California, supra, 215 Cal.App.3d at pp. 984-985 (quoting Hutchinson v. United States (1988) 838 F.2nd 390.) [Emphasis added.]

Expert Review of the Instant Case Establishes that the Conduct of Dr. Lee Was Within the Community Standard of Care.

The instant case is a medical malpractice action involving allegations which are beyond a layman’s knowledge. Thus, under Landeros and Munro, whether or not the care ar d treatment rendered by Dr. Lee was within the standard of care is a matter exclusively with: In the province of expert testimony. Therefore, Dr. Lee supports his motion with an expert declaration from Robert White, M.D. establishing that the care and treatment rendered by him was within t he standard of care for a vascular surgeon.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UCSF Medical Center, San Francisco General, California Pacific Medical Center, or St. Francis Memorial Hospital.

The role of expert testimony in a medical malpractice action was explained in Willard v. Hagenmeister, (1981) 121 Cal.App.3d 406:

Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of care and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skills is not a matter of general knowledge and can only be supplied by expert testimony. Willard, supra, at page 412; citations omitted. For more information you are welcome to contact San Francisco personal injury lawyer, Moseley Collins.

See also Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943 (holding that the standard of care in a professional negligence case can be proven only by expert testimony); Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1250-1251 (discussing presentation of expert testimony with respect to the standard of care in an elder abuse case.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Here, Article 2 of Defendant Black’s arbitration agreement begins in bold type stating: “All Claims Must Be Arbitrated.” This long clause goes on to state that “… this agreement shall cover all claims or controversies whether in tort, contract, or otherwise ….”

On the other hand, the brief second clause of Article 2 states that: “Filing by physician of any action in court to collect any fee from patient shall not waive the right to compel arbitration of any malpractice claim. However, following the assertion of any claim against physician, any fee dispute, whether or not the subject of any existing court action, shall be resolved by arbitration.” For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

This arbitration agreement requires Ms. Hall to waive her constitutional right to a jury trial and arbitrate all her claims, even if she has a fee dispute with the physician, while on the other hand, Defendant Black is not obligated to waive his right to a jury trial for the only claim he would have against Ms. Hall, a fee dispute.

A one-sided term such as this is unconscionable because … the doctrine of unconscionability limits the extent to which the stronger party, may, through a contract of adhesion, impose the arbitration forum on the weaker party without accepting the forum for itself. Armendariz, supra, 24 Cal. 4th 118.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)

The plaintiff has no burden to show a triable issue if the defendant failed to meet its initial burden of showing by admissible evidence the absence of a triable issue of material fact. FSR Brokerage, Inc. v. Superior Court, 35 Cal.App.4th 69, 73 n.4, 41 Cal.Rptr.2d 404, 407 n.4 (1995) (citations omitted). Even if the defendant makes its initial showing in support of summary judgment, it is not necessarily entitled to summary judgment. The showing merely shifts the burden to the plaintiff to show a triable issue about one of the elements of the action or of those affirmative defenses. C.C.P. § 437c(o)(2). For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

A court must liberally construe the evidence offered in opposition to a motion for summary judgment, and strictly construe the evidence offered in support of the motion, when it is determining the existence of a triable issue of fact. Speaker v. Adamson Cos., 30 Cal.3d 358, 373, 178 Cal.Rptr. 783, 791 (1981). A court must consider the direct as well as the circumstantial evidence on each issue, and the reasonable inferences that can be drawn from the evidence. Mann v. Cracchiolo, 38 Cal.3d 18, 210 Cal.Rptr. 762, 771 (1985).

In ruling on the motion [for summary judgment], the court must consider all of the evidence and all of the inferences reasonably drawn therefrom … and must view such evidence … and such inferences … in the light most favorable to the opposing party. Aguilar, 25 Cal.4th at 843, 107 Cal.Rptr.2d at 856 (citations and internal quotations omitted).

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Plaintiff, Sean Greene, submits this Memorandum of Points and Authorities in Opposition to Defendant’s Motion for New Trial or, in the Alternative, Remittitur:

INTRODUCTION

This action arises from a motor vehicle collision which occurred on June 12, 2004. Plaintiff filed the action and requested a jury trial. In its answer, the defendant likewise requested a trial by jury.

The jury trial was conduced from February 2 to February 5, 2008, before the Honorable Anne Smith. On the morning of trial, the defendant admitted liability, but disputed causation and damages. During the trial, plaintiff submitted substantial evidence on the issues of causation and damages which was not significantly opposed by the defendant. The jury returned a verdict awarding Mr. Greene economic damages for the stipulated medical expenses of $15,221.75, future medical expenses of $720, past lost earnings of $28,686 and future lost earnings of $4,250. The jury awarded past non-economic damages in the amount of $190,000 and future non-economic damages of $80,000. The verdict of the jury was unanimous in all respects. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

In spite of the facts that the defendant sought the trial by jury, the defendant now seeks a new trial, complaining that the non-economic damages awarded by the jury were excessive. The defendant has not cited any statutory or jurisprudential for her position that the damages are excessive, except for Horsford v. Board of Trustees of Calif. State Univ. (2005) 134 Cal.App.4th 359 wherein the court remitted on award of economic damages in an employment discrimination case. Nor has the defendant cited any evidence that the jury was unduly influenced by passion and sympathy toward the plaintiff.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Plaintiff testified at trial that he currently has pain in the left hip/pelvis area which he rates as a 3 on a scale of 0-10. He did experience more acute flare ups 1-2 times a year since the car accident he has been released back to work and has returned to Dr. Black, who has sent him to physical therapy and taken him off work for a week or two. Dr. Black testified that he expected plaintiff would have on-going pain for 3-5 years following the accident however, because it was already 3.5 years after the accident, he would expect that plaintiff will have the on-going pain for another 1.5 years. The jury’s award for future medical expenses ($720) and future lost earnings ($4,250) were not substantial.

Based on the above evidence, the award of $190,000 for past pain and suffering and $80,000 for future pain and suffering was excessive and not based on the evidence presented at trial. A new trial should be granted.

In the Alternative, The Court Should Remit The Award.

As noted above. Code of Civil Procedure section 662.5(b) sets forth the procedure whereby the court may deny a motion for a new trial conditioned upon acceptance of a reduction of the award. In general, the trial judge has discretion to grant a new trial or the grounds of excessive damages, and it is the court’s duty to grant such a new trial or provide for a reduction of a verdict if, under the circumstances, it believes the jury’s award is excessive. (Bazzoli v. Nance’s Sanitarium, inc. (1952) 109 Cal.App.2d 232.) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

Procedural Unconscionability

Ms. Hall was pregnant and in need of an obstetrician to deliver her baby. At her first visit to Dr. Black, Ms. Hall was presented with the arbitration agreement. She was told to sign it prior to being seen.

In Armendariz, the arbitration agreement was imposed on the employees as a condition of their employment. Here, Ms. Hall was essentially in the same position as the employees in Armendariz. She was required to sign the arbitration agreement or forego receiving prenatal care and delivery from Dr. Black. She was in an oppressive take it or leave it situation. Just as the employees in Armendariz were put in the position of signing an arbitration agreement or risk being unemployed, Ms. Hall was put in the weaker position of signing the arbitration agreement or risk not finding a doctor to deliver her baby. This is classic disparity of bargaining power. The arbitration agreement is therefore a contract of adhesion and is procedurally unconscionable.

Substantive Unconscionability

Defendant Black’s arbitration agreement is substantively unconscionable in two respects, lack of mutuality and the allocation of fees for arbitration. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(1) Mutuality
An arbitration agreement is substantively unconscionable if it is unfairly one-sided, requiring one party to the agreement to arbitrate their claims while the other party is not.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)

The Defendant’s Multiple Breaches of the Standard of Care Caused or Contributed to George Jackson’s Brain Damage

The defendant’s delay in obtaining the necessary information to make a determination about the fetus’s status, and the consequent delay in having the baby delivered, was a substantial factor in causing or contributing to his birth injuries. By failing to attend to Ms. Jackson immediately upon receiving the 17:00 telephone call, defendant Lee delayed the delivery of George Jackson by more than 20 minutes. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.

Even if defendant Dr. Lee and Dr. Stein first tried a failed vacuum extraction at 17:01 or 17:02, they would have moved to perform a Cesarean-section by 17:05, with the baby delivered within about 10 minutes. (Defendant Lee in her deposition stated that a Cesarean-section could be performed at this hospital within 10 minutes.) This would mean that the baby would be delivered at about 17:15 to 17:20, thus avoiding an additional 22 minutes of fetal distress and avoiding the deprivation of oxygen to George’s brain. Indeed, the defense expert acknowledges that the bradycardia did not develop until 17:20, so that event would have been avoided entirely or would have been sustained for only a minute or two. The defense expert concedes that a minute or two of fetal bradycardia would have been harmless.

The Defendant’s Burden To Prove that She is Entitled to Judgment as a Matter of Law

The burden of persuasion on a defendant’s motion for summary judgment in California is clear: It is on the defendant.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, Regional Medical Center, Good Samaritan Hospital, Santa Clara Valley Medical Center, or O’Connor Hospital.

As far as Defendant is aware, Plaintiff continues to have ongoing mental health problems. Plaintiff has asserted these problems as the reason why he has not yet completed his deposition in this case. Plaintiff’s complaint alleges that, because of Defendant’s alleged negligence, he is going to be required to seek medical and/or psychological services in the future. For more information you are welcome to contact San Jose personal injury lawyer, Moseley Collins.

Plaintiff has testified in his deposition that he has a pre-existing history of depression which was debilitating enough to cause him to miss work and to receive social security disability. Defendant’s medical records suggest other pre-existing mental health problems. Defendant has not been able to fully question Plaintiff about these matters, because Plaintiff has been unavailable for his deposition.

Because Plaintiff has ongoing psychiatric problems, which he alleges are related to, or caused by, his alleged CRPS/RSD, Defendant requested in November 2008 that Plaintiff stipulate to a mental examination. Plaintiff’s counsel refused.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

LEGAL DISCUSSION

THE COURT HAS A DUTY TO SET ASIDE AN EXCESSIVE VERDICT UNSUPPORTED BY THE EVIDENCE.

A New Trial Should Be Granted Because The Award for Past and Future Pain and Suffering by the Jury Was Unsupported by the Evidence. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The Court has authority and the power in this case to reweigh the evidence independently from that of the jury to determine whether the past pain and suffering and future pain and suffering award was excessive.

Defendant maintains that the amounts award by the jury for past and future noneconomic damages is simply unsupported by the evidence. To that end, the evidence at trial demonstrated that plaintiff suffered only soft tissue injuries. Plaintiff testified at trial that plaintiff’s CT scans and x-rays taken at the hospital following the car accident were all negative.

None of plaintiff’s doctors testified at trial that plaintiff required surgery or that he would require surgery in the future. Plaintiff’s past medical bills were only $15,221 and there was no evidence presented at trial to suggest that plaintiff suffered enduring, severe injuries or pain as a result of the accident.

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